“Blurred Lines” in Copyright Infringement of Popular Songs

“Blurred Lines” in Copyright Infringement of Popular Songs

Musing on two recent decisions that came down from the Central District of California, Osama Ahmend Fhamy v. Jay-Z1 and Pharrell Williams v. Bridgeport Music, Inc.,2 intellectual property attorney Glen Rothstein said that the music litigation world is starting to resemble “the Wild West.”3 Copyright infringement suits brought against recording artists for alleged unlicensed use of portions of music have ushered in a kill-or-be-killed mentality.4 As Rothstein notes, it may be in artists’ best interest to obtain more licenses up-front, to avoid the time, cost and embarrassment of a protracted suit for copyright infringement.5 Perhaps Rothstein is right. As Fhamy v. Jay-Z, Williams v. Bridgeport and a third case, Three Boys Music Corporation v. Michael Bolton 6 show, recording artists are in enemy territory.

Jay-Z made it out alive, but not without a fight. Osama Ahmed Fahmy, the heir of renowned Egyptian composer, Baligh Hamdi, sued Jay-Z (whose legal name is Shawn Carter) and co-songwriter Timothy Mosley, alleging that Carter and Mosely used a flute melody from Hamdi’s song, “Khosara,” (written in 1957) in their song, “Big Pimpin,” (written in 1999) without proper license.7 The Plaintiff claimed that although he or Hamdi had transferred the economic rights (author’s right to a monetary gain from his or her work) for “Khosara” to Mosley, through a series of transfer agreements, he had not transferred the moral rights (the author’s personal or moral stake in the song).8 The case proceeded to the trial stage, an uncommon feat in copyright infringement cases, but was decided as a matter of law before the jury verdict.9 The judge ultimately held that because United States law does not allow the pursuance of legal claims to protect against the infringement of moral rights to copyrighted material (they may only bring claims for protection from the infringement of economic rights), Plaintiffs did not have standing to bring the case.10 Mr. Carter and Mr. Mosely did not make it out of the legal battle unscathed—they still had to endure the cost and publicity of a trial—but were spared a hefty damages award to Plaintiffs.

Robin Thicke and Pharrell Williams were not so lucky. Upon the lethal threat of a copyright infringement suit against them by the estate of famed musician Marvin Gaye, Thicke and Williams beat The Gayes to the courthouse.11 Thicke and Williams fired the first shot by suing The Gaye Family in an attempt to obtain a declaratory judgment preventing The Gayes from making copyright infringement claims. The plan back-fired, however, when The Gayes counter-sued, claiming that “Blurred Lines,” a song written by Thicke and Williams, infringed Marvin Gaye’s copyright on a song he authored, “Got to Give it Up.”12 During the lengthy trial, Thicke testified that he did not believe that he was copying Gaye’s work. Instead, he was attempting to evoke the “feel” of “Got to Give it Up.”13 He claimed did not have Gaye or his song in mind while he wrote “Blurred Lines.”14 Thicke also played portions of songs by U2, The Beatles, and Michael Jackson, along with “Blurred Lines,” on a keyboard attempting to demonstrate how easy it is for songs to sound alike.15 Ultimately, the jury found that Thicke’s and Williams’ song had in fact infringed the copyright for the portion of “Got to Give it Up that The Gaye Family owned.”16 Delivering the final blow, the jury awarded over $7.3 million to The Gaye Family, which encompassed actual damages, in addition to profits from the song made by Thicke, Williams and Williams’s publishing company, More Water from Nazareth Publishing, Inc.17 The definition of a knock-out, this case broke the record for the largest judgment in a copyright infringement suit.18

Second place goes to Michael Bolton, whose expensive defeat left him and Sony Music Publishing at a $5.4 million total loss.19 This was not only an economic loss for Bolton; his faith in the United States legal system was a casualty of the legal battle as well.20 The Isley Brothers sued Bolton, claiming that his 1990 song, Love is a Wonderful Thing infringed The Isley Brothers’ copyright on their 1966 song bearing the same name.21 Bolton fought the case for nine years, but had to walk away from the battle after he was denied certiorari to appeal the Ninth Circuit’s decision against him.22 The case turned on whether or not Bolton had “access” to the Isley Brothers’ song.23 At trial, although Bolton attempted to prove that not only had he not heard the song before he wrote his own with the same appellation, but that the song had not been recorded before 1990 and that it had not been played on radio stations that would have enabled Bolton to hear it; demonstrating that he had neither knowingly nor subconsciously taken portions from the Isley Brothers song.24 To Michael’s dismay, the jury found for Plaintiffs and awarded the multi-million dollar settlement.25 Although he survived, Bolton did not make it out of the fray without casualty. Discussing the ordeal in an interview with Billboard, Bolton said, “…[the case] nearly ruined my life […] Believe not in the justice system—when it fails, innocent people are injured horrifically and guilty people are set free.”26

Although Michael Bolton’s words may sound dramatic, his views on his legal battle illustrate that copyright infringement claims against musicians’, songwriters’ and music publishers’ work illicit pain on both sides. Those at the top of the music industry, wealthy as they may be, are justifiably devastated to see their money go; and as Bolton, Thicke, Williams, Carter and Mosely clearly prove, powerful celebrities are willing to fight hard to keep that money and their reputations in tact. It remains to be seen what effect these cases will have on the music industry—whether it will encourage artists to be more cautious and diligent in obtaining music licenses, or make them more crafty in their efforts to get around them.27 Either way, the battle lines are drawn.